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Dekalb DUI: DeKalb County Government fires trash worker referenced in corruption report for being arrested for DUI while working

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DeKalb County has fired a trash collector who was arrested for DUI while driving a government truck, then rehired months later.

The March 2011 arrest of Sidarius Johnson, 33, comprised a paragraph in the 40-page corruption report handed to the county last week by special investigators Mike Bowers and Richard Hyde. Johnson, however, was not identified by name.

The report said that after the arrest, “the impound fee of $140 was paid using county funds. The employee pled guilty to DUI and resigned from the Sanitation Department. The next week he was rehired by the county.”

Sidarius Johnson photo

County spokesman Burke Brennan said Johnson was actually rehired six months later. He was fired Monday, Brennan said.

Johnson told The Atlanta Journal-Constitution that a deputy director fired him because he didn’t disclose the DUI when he reapplied for his job. He could not explain why, but said it wouldn’t have disqualified him even if he had disclosed it.

Johnson said he will appeal his firing.

“I can only say that the county knew about the situation and failed to take any actions until after this corruption report was released,” he said in a prepared statement. “This is a violation of my rights as a county employee, and that’s why I’m fighting for my job back.”

DUI Defense: Trial date set in DUI case of Atlanta Hawks’ coach Mike Budenholzer

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The Ajc’s reports

A trial date of Oct. 8 has been set in the driving under the influence case of Hawks coach Mike Budenholzer.

The case will be heard in Fulton County State Court by Judge Diane E. Bessen at 9 a.m.. Budenholzer entered a not guilty plea on two misdemeanor charges in the case on July 28. According to court records, Budenholzer waived a jury trial at that time.

Budenholzer faces misdemeanor charges of driving under the influence alcohol less safe and defective or no taillights from an arrest Aug. 28, 2013 after being stopped by police at 10:30 p.m. at 10th Street and Crescent Avenue in Midtown.

The case was moved to Fulton County State Court at the request of the prosecutor’s office during the initial hearing in Atlanta Municipal Court in October 2013. The statute of limitations was due to expire in three months when the case was placed on the court docket in May.

Budenholzer faces up to a year in jail, as much as a $1,000 fine, a driver’s license suspension and community services for a first-time offense. If Budenholzer is found guilty, he would also face a likely two-game suspension from the NBA.

The trial date comes between the Hawks’ first two exhibition games of the preseason. They are scheduled to play the Cavaliers in Cincinnati on Oct. 7 and the Pelicans in Jacksonville on Oct. 9.

DUI Defense: Williams v. The State Georgia Supreme Court Holds that Implied Consent Is Not Actual Consent

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S14A1625. WILLIAMS v. THE STATE.

HINES, Presiding Justice.

Following a bench trial, John Cletus Williams was convicted of driving under the influence of drugs (“DUI”), OCGA § 40-6-391 (a) (2), and failure to maintain lane,OCGA§40-6-48(1).1 He had moved unsuccessfully to suppress the results of a state-administered blood test2 on the basis that the test, obtained without a search warrant, violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution.3 His challenge is that Georgia’s implied consent statute, OCGA § 40-5-55,4 is unconstitutional as applied in his case because consent obtained solely under the statute does not amount to voluntary consent for purposes of the Fourth Amendment and the related provision of the State Constitution.5 For the reasons that follow, we vacate the judgments of the state court and remand the case to that court for reconsideration of Williams’s motion to suppress and any consequent proceedings.

The transcript of the hearing of the motion to suppress and the immediately following bench trial reveal the following facts, which were either stipulated at trial or are not in dispute. On September 22, 2012, Williams was arrested by an officer of the Gwinnett County Police Department and charged with DUI and failure to maintain lane; the officer had “reasonable articulable suspicion” to stop Williams and probable cause to arrest him. Williams was placed in custody but was not advised of his Miranda6 rights. The officer read Williams the age-appropriate statutory implied consent notice7 and pursuant to it requested that Williams submit to blood and urine tests. The officer told Williams that it was “a yes or no question,” and Williams verbally responded “yes.” There was no other conversation about consent for the testing, i.e., the officer did not ask Williams “if [Williams] was willing to freely and voluntarily give a test.” The officer “read [Williams] the implied consent and that was pretty

6 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

7 The applicable implied consent notice for suspects age 21 or over is found in OCGA § 40-5-67.1 (b) (2), and states:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

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much the end of it.” It “was an ordinary DUI,” there “were no exigent circumstances,” and no search warrant was obtained. Williams was taken to a medical center where blood and urine samples were taken for the purpose of his criminal prosecution.

The state court denied Williams’s motion to suppress his blood test,8 expressly rejecting the “reasoning” that statutory implied consent implicated Fourth Amendment concerns, and the contention that the statutory consent, in and of itself, was not a valid exception to the Fourth Amendment’s requirement of a search warrant. The state court’s analysis is flawed.

A suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003). In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few

8 Neither Williams’s constitutional challenge in his motion to suppress or his arguments on appeal address his given urine sample, but only the blood test and its results.

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specifically established and well-delineated exceptions. State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984), citing Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (91 SCt 2022, 29 LE2d 564) (1971). Thus, a warrantless search is presumed to be invalid, and the State has the burden of showing otherwise. State v. Slaughter, supra, citing Mincey v. Arizona, 437 U. S. 385, 390-391 (98 SCt 2408, 57 LE2d 290) (1978), and McDonald v. United States, 335 U. S. 451, 456 (69 SCt 191, 93 LE 153) (1948).

The first well-recognized exception to the warrant requirement in the context of a state-administered blood test is the presence of exigent circumstances. The United States Supreme Court in Schmerber v. California, 384 U. S. 757 (86 SCt 1826, 16 LE2d 908) (1966), addressed the Fourth Amendment implications of a warrantless blood draw in a DUI case. The Supreme Court stated it was to determine “whether the police were justified in requiring [the petitioner in that case] to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” 384 U. S. at 768. The Schmerber court acknowledged that “[w]hile early cases suggest[ed] that there is an

unrestricted ‘right on the part of the [g]overnment . . . to search the person of 5

the accused when legally arrested, to discover and seize the fruits or evidences of crime,’” the “mere fact of a lawful arrest” did not end the inquiry. Id. at 769. This was so because such suggestion was premised on the possibility of “more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused,” and because once there was a permitted weapons search of the arrested person it would be “both impractical and unnecessary” to achieve the purpose of the Fourth Amendment “to attempt to confine the search to those objects alone.” Id. However, the Court concluded that such considerations had “little applicability with respect to searches involving intrusions beyond the body’s surface,” and that “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Id. at 669, 670. Accordingly, “[i]n the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” Id. at 770. The Court reasoned that inasmuch as “[s]earch warrants are ordinarily required for searches of dwellings,” there could not be a lesser requirement intheinstanceof“intrusionsintothehumanbody,”butnotedthis 6

was so “absent an emergency.” Id. It then concluded that the officer in the case might reasonably have believed that there was an emergency, in the sense that the delay involved in obtaining a search warrant threatened the destruction of evidence, the threat and exigent circumstance being the diminishment of the concentration of alcohol in the blood shortly after the cessation of drinking as the body eliminates it from the system. Id. Also noting that in that case, time was taken to bring the accused to a hospital and to investigate the accident scene, the Court concluded there was no time to secure a warrant, and given the “special facts,” the blood draw “was an appropriate incident to petitioner’s arrest.” Id. at 771. Thus, Schmerber established the legal nexus between the transient and dissipating nature of an intoxicant in the human body and presence of an exigency for the purpose of securing a blood test without the necessity of a search warrant.

This Court carried such nexus further in Strong v. State, 231 Ga. 514 (202 SE2d 428) (1973), when it determined that in the situation in which there is probable cause to arrest an individual for DUI, the “evanescent nature of alcohol in the blood,” in and of itself, necessitated that the defendant’s blood sample be extracted in order “to prevent a failure of justice from a certain disappearance

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of this evidence.” Id. at 518. In other words, the dissipation of the intoxicant in the body automatically, as a matter of law, provided the exigency for a warrantless blood test incident to the arrest. However, prior to the bench trial and the denial of the motion to suppress in Williams’s case, the United States Supreme Court issued its decision in Missouri v. McNeely, 569 U. S. ___ (133 SCt 1552, 185 LE2d 696) (2013), in which it rejected a per se rule that the natural metabolization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all DUI cases. 569 U. S. ___ (133 SCt at 1556). Instead, it concluded that,

while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

Id. at 1563. Thus, to the extent that Strong v. State holds otherwise, it is hereby overruled. In the present case, there is no dispute that there were no exigent circumstances. Consequently, the analysis in this case must then focus on the voluntary consent exception to the warrant requirement because it is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the 8

need for either probable cause or a search warrant. Cooper v. State, supra at 291 (VI), citing Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SCt 2041, 36 LE2d 854) (1973).

As noted, it is uncontroverted that Williams submitted to the blood test after the police officer read him the implied consent notice for suspects age 21 or over. However, in Cooper v. State, supra, this Court plainly distinguished compliance with the implied consent statute from the constitutional question of whether a suspect gave actual consent for the state-administered testing. We emphasized such remaining question in regard to the validity of the consent, confirming that “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” Cooper v. State, supra at 291 (VI), citing, inter alia, Bumper v. North Carolina, 391 U. S. 543 (88 SCt 1788, 20 LE2d 797) (1968).9 And, it can certainly be argued that the need for

9 In Cornwell v. State, 283 Ga. 247 (657 SE2d 195) (2008), this Court stated that inasmuch as there was probable cause for Cornwell’s arrest for DUI and the State had complied with statutory implied consent requirements, Cornwell could not complain that the state-administered urine test for the presence of alcohol and drugs violated his State and Federal Constitutional rights to be free from unreasonable searches and seizures; therefore, his motion to suppress was properly denied. Id. at 249 (2). However, such statement was in direct response to Cornwell’s argument that the implied consent statute was unconstitutionally applied to him because it permitted warrantless compelled testing of his bodily fluids without proof of the existence of exigent circumstances. Our

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the State to demonstrate actual consent for the purpose of exception to the warrant requirement and its constitutional implications is reinforced by the analysis of the United States Supreme Court in McNeely.

The facts of McNeely did not lend themselves to the Supreme Court expressly addressing the issue of a suspect’s consent to the testing of bodily fluids as satisfying Fourth Amendment concerns because the defendant in that case refused to consent to a blood test, McNeely, 569 U. S. ___ (133 SCt at 1557); however, a plurality of the Court was plainly rejecting a per se rule for sustaining an exception to the Fourth Amendment’s requirement of a search warrant in favor of a case-by-case assessment based on the totality of the circumstances, albeit in the narrow context of exigency. Id. at 1563. Nevertheless, sister states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue; but, what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and

determination, in no manner, intended to blur the distinction between implied consent and actual consent for the purpose of Fourth Amendment analysis.

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therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. See, e.g., People v. Harris, ___ Cal.Rptr.3d ___, 2015 WL 708606 (Cal App. 4 Dist. 2015); Weems v. State, 434 SW3d 655 (Tex. App. 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis. App. 2014); State v. Moore, 354 Or. 493 (318 P3d 1133) (Or. 2013); State v. Brooks, 838 NW2d 563 (Minn. 2013). See also Cooper v. State, supra at 291 (VI).

As the Wisconsin Court of Appeals aptly observed in Padley:

“Implied consent” is not an intuitive or plainly descriptive term with respect to how the implied consent law works. . . . [It may be] a source of confusion. . . . [T]he term “implied consent” [may be] used inappropriately to refer to the consent a driver gives to a blood draw at the time a law enforcement officer requires that driver to decide whether to give consent. However, actual consent to a blood draw is not “implied consent,” but rather a possible result of requiring the driver to choose whether to consent under the implied consent law.

State v. Padley at 564.
In considering Williams’s motion to suppress, the state court failed to

address whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the

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consent under the totality of the circumstances. Consequently, the judgments of the state court are vacated, and the case is remanded to that court for proceedings consistent with this opinion.

Judgments vacated and case remanded with direction. All the Justices concur.

Decided March 27, 2015.
OCGA § 40-5-55; constitutional question. Gwinnett State Court. Before

Judge Iannazzone.
Lance W. Tyler, for appellant.
Rosanna M. Szabo, Solicitor-General, Joelle M. Nazaire, Shane R.

McKeen, Assistant Solicitors-General, for appellee.

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DUI Defense and Costs: Atlanta Drivers Face Largest Insurance Premium Increase for DUI Conviction

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The Atlanta Business Chronicle just reported that Atlanta drivers convicted of a DUI face the fifth largest insurance premium increase if convicted of a DUI.    The average increase for Atlanta drivers convicted of a DUI was an additional $978.86, raising Atlantans convicted of a DUI insurance cost to on average $2,229.27.

If you are facing a DUI you need an attorney to prepare your DUI defense who knows the real costs of a DUI and has worked with the prosecutors and courts your case is assigned to in the past.

 

 

DUI Drugs: NHTSA Study Driving Stoned is much safer than driving drunk

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A recent study released by National Highway Traffic Safety Adminstration NHTSA  shows that drivers who use marijuana are no more likely to wreck than a sober driver.  To see the full report click here.  The state of Georgia criminalizes driving under the influence of drugs.  It is a separate and distinct crime from DUI alcohol.  To see more about Georgia’s DUI laws click here.

 

If you are facing a DUI alcohol or drugs charge click here for help.

MADD: What is Blood Alcohol Content

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Mothers against Drunk Drivers recently published an excellent article on what is blood alcohol content.  The article does an excellent job of describing blood alcohol content, how it causes drivers difficulties when operating this influence, and strategies for remaining a sober driver.

Tragedy and Legal Consequences of Driving Under the Influence

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The AJC reported, on the the December 13, 2013 tragedy involving a newly married couple leaving their wedding.  The driver of the car wrecked and killed his bride only hours after marrying her while under the influence of alcohol.  The driver pled guilty to felony vehicular homicide. The Defendant was sentenced to 15 years,  the first two to three months in jail, and sentenced to probation after release.  In addition he was classified a habitual violator by the Department of Driver Services and is barred from having a driver’s license for at least five years.

Mothers Against Drunk Drivers Survey

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A new survery was just released by Mothers Against Drunk Drivers showing society views on choosing a designated driver and preventing DUI drivers on the road has shifted.  The survey found that most persons use a designated driver because the want to keep themselves and others safe.  The significant penalties for a DUI arrest were less of a factor than originally thought.  To learn more about the survey about Drunk Driving Click here.

Andrew Lynch Awarded Super Lawyer’s Rising Legal Star Status 2015

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Andrew Lynch was awarded the status of Super Lawyer’s Rising Star 2015 for the area of Criminal Defense.  This award is only given to the top 2.5% of lawyers throughout the county. Click here to see more.

“Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.”

 

Atlanta Municipal Court Warrant Amnesty Program

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illegal_search_thumbAtlanta Municipal Court: Warrant Amnesty Program Now!

As of today, February 2nd, 2015, the warrant amnesty program for City of Atlanta has begun.  This will be in effect from February 3rd, 2015 to March 27th, 2015.  All active warrants issued by the City of Atlanta before November 18th, 2015 will be be canceled.  If you had an active warrant out, now is the time to act and get rid of your charges.  Many people with warrants want to go to the courthouse to settle their cases, but are afraid of going in for fear that they will be arrested and put in jail upon arrival.  You do not necessarily have to have committed a serious crime to have a warrant issued. A common situation is “failure to appear”, which could have been caused by something as harmless as forgetting to go to court for a speeding ticket.

Luckily now is an excellent time to deal with this.  For the next eight weeks, you can go to the Atlanta Municipal Courthouse at 150 Garnett Street, to settle your case.  The courthouse will be open from 7:00 AM to 5:30 PM, Monday through Friday.  For those who cannot make it at those times, the court will be open on Saturday, March 21st, starting at 10:00 AM, for people to seek resolutions.  You can either register online or in person.

If you live out of town, and need to follow up with this by doing a “plea in abstentia”, or are uncomfortable going on your own, hiring an attorney will be the most effective way to deal with this.  Attorney Andrew Lynch has much experience in dealing with this court and these warrants.  Click below for additional information.